This civil rights action is before the Court on defendants' motion (# 35) to assert and consolidate an additional defense (qualified immunity), defendants' motion (# 18) to dismiss, which the Court has partially converted into a motion for summary judgment per its Order (# 26) of March 17, 2005, and plaintiff's motion (# 5) for appointment of counsel. For the following reasons, defendants' motion to dismiss is granted.

BACKGROUND

As described in his 64-page complaint filed on May 20, 2004, plaintiff is suing several employees of the Wayne County, New York, Department of Social Services. The named defendants remaining*fn1 in this lawsuit are: Ronald Carr, Child Protective Caseworker; Lisa Graf, Child Protective Senior Caseworker; Shannon Brendlinger, Child Protective Services Caseworker; Peggy McGall, Child Protective Supervisor; John Kane, Department of Social Services Supervisor; Richard LeBlanc, Department of Social Services Supervisor; and M. Josh McCrossen, Commissioner of Wayne County Department of Social Services, Child Protective. Plaintiff alleges that defendants*fn2 violated his constitutional rights in administering the child welfare programs under their control by, among other things, failing to properly investigate complaints of child abuse and failing to provide his children with safe placement when they were at risk of being abused.

On December 21, 2004, defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction under the Rooker-Feldman doctrine, the domestic relations exception to federal jurisdiction, and the Younger abstention doctrine, and also requested dismissal under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. No answers have been filed. Plaintiff responded to the motion to dismiss on March 8, 2005, and, on March 17, 2005, the Court entered an Order partially*fn3 converting the motion to dismiss to one for summary judgment pursuant to Federal Rule of Civil Procedure 12(b), giving notice to the parties. Both parties filed additional papers in support of their respective positions, and on August 17, 2005, defendants filed their motion (# 35) to add a defense of qualified immunity. Plaintiff filed a memorandum (# 37) in opposition to that motion, but argued only that qualified immunity should not be applied, not that defendants could not raise that defense at this stage of the proceedings.

As part of their application to dismiss, defendants filed an affirmation by counsel, Devin Lawton Palmer, Esq., which alleges the facts upon which defendants now rely upon in support of both of their motions. Mr. Palmer's affirmation is based on his "personal knowledge and review of Defendants' official records and the various State Court Proceedings referenced herein." (Palmer Affirmation ¶ 1.)

Defendants allege that on October 28, 2001, plaintiff assaulted his girlfriend, Rose B. ("Rose"), who was at the time six months pregnant with their child, Timothy. The assault took place in front of Rose's and plaintiff's child, Brittany, who was two years old, Rose's child Dalyn, who was one year old, and plaintiff's child, from an earlier relationship, Amber S. ("Amber"), who was ten years old. (Palmer Affirmation ¶¶ 7-12.) According to defendants, as a result of plaintiff's assault, Rose required extensive medical care to repair her jaw, which he had broken in three places, two ruptured eardrums, and facial contusions and lacerations. (Palmer Affirmation ¶¶ 12-14.) Plaintiff was indicted in Wayne County as a result of his actions, and plead guilty to assault in the second degree and three counts of endangering the welfare of a child. He is now serving a five year sentence in the Wyoming Correctional Facility in Attica, New York. (Palmer Affirmation ¶¶ 23-25.) These and other factual allegations in defendants' memorandum of law are supported by citations to Mr. Palmer's affirmation and Mr. Palmer's affirmation cites to attached exhibits. With regard to the allegations, above, the source is a Petition filed in Family Court of New York, County of Wayne, on November 1, 2001, Docket # N1877-1878.01, at 4 (attached to the Palmer Affirmation as Ex. E). The same Petition alleges that plaintiff has a serious drug and alcohol problem (mixing alcohol and crack cocaine, resulting in violent behavior), and that he had assaulted Rose on previous occasions (for example, pointing a shotgun at her head and threatening to kill her, and choking her until she lost consciousness). (Palmer Affirmation, Ex. E, at 2-3.)

Plaintiff's affidavit filed in response does not dispute that he pointed a loaded shotgun at Rose while threatening to kill her, or that he choked her to the point of unconsciousness, but states that, "[t]hese accusations concerning plaintiff were already litigated back in [sic] March 27, 2001 ." and that, "[t]hese accusations also found their way into plaintiff's indictment with little reconstruction." (Pl.'s Affidavit in Opposition to Defendants' Motion for Summary Judgment (# 30), filed on April 27, 2005, at 6.) Plaintiff admits to the "existence" of documents submitted by defendants, but refutes their accuracy. (Pl.'s Answer to Defendants' Affirmation in Support of Defendants' Motion to Dismiss (# 25), filed on March 8, 2005, ¶ 2.) Plaintiff also denies a drug or alcohol problem, and further contests that he mixed crack cocaine and alcohol. (Pl.'s "Answer" ¶ 9.)

Following the October 28, 2001 incident, Dalyn and Brittany were temporarily removed (Rose was in the hospital and plaintiff had been arrested, according to the removal Order). (Order Directing Temporary Removal of Child, No. N1877-1878-01 (Dec. 13, 2001), attached to Palmer Affirmation as Ex. F, at 2-4.) Amber was residing with her mother, Mary Guerrero, according to the Order. (Id. at 4.) Family Court in Wayne County issued a temporary Order of Protection against Rose and plaintiff, and specifically ordering plaintiff to have no contact with Brittany or Dalyn. (Temporary Order of Protection, No. N1877-1878-01 (Oct. 29, 2001), attached to Palmer Affirmation as Ex. K.)

On December 5, 2001, plaintiff withdrew a petition for return of his children that he had filed, and consented to the entry of a neglect finding without admission against him. (Fact-Finding Order, No. N-1877-1878-01 (Dec. 5, 2001), attached to Palmer Affirmation as Ex. N, at 2.) Timothy was born on January 3, 2002, and defendants filed a neglect petition with the Family Court on January 9, 2002. (Palmer Affirmation, Ex. O.) Family Court Judge Sirkin ordered Timothy removed on January 4, 2002. (Palmer Affirmation, Ex. P.)

At a dispositional hearing on April 26, 2002, Rose and plaintiff each appeared with their own counsel, and plaintiff consented to entry of a dispositional order holding, among other things, that plaintiff was forbidden to have any contact with Timothy, and that he was to obtain counseling for anger management, parenting skills, domestic violence (perpetrator) counseling, and drug and alcohol counseling. (Palmer Affirmation, Ex. Q, ¶¶ 9, 13.) The same disposition was entered with regard to Dalyn and Amber on September 19, 2002. (Palmer Affirmation, Ex. R. ¶¶ 8, 14.)

On November 8, 2002, legal and physical custody of Dalyn, Brittany and Amber was returned to Rose, by a Family Court Order entered August 18, 2002. (Palmer Affirmation, Ex. V.) However, the November 8, 2002 date was stayed in an Order to Show Cause entered on November 6, 2002. (See Palmer Affirmation, Ex. W at 2.) Subsequently, a hearing held on November 26, 2002, resulted in a Family Court Order entered February 14, 2003, staying the November 8, 2002 date, and extending it to January 25, 2003. Plaintiff appeared for the November 26, 2002 hearing, represented by counsel, and objected to placement of the children with Rose. (Id.) Subsequent orders, the details of which are not relevant here, ordered additional services for Rose and required the Wayne County Department of Social Services to monitor Rose's fourth child, James. (See Palmer Affirmation, Ex. Y.)

Through his attorney, plaintiff appealed the Family Court Order returning the children to Rose, but then withdrew that appeal upon learning that Rose had surrendered her parental rights. (Palmer Affirmation, Ex. Z.) It was during an October 2, 2003, hearing in Family Court that Rose executed the Judicial Surrender of Guardianship and Custody of Brittany, Dalyn, Timothy and James. (Palmer Affirmation, Ex. BB.) The resulting Order stated that the children were now in the custody of the Wayne County Department of Social Services and that the Department was "authorized and empowered to consent to the adoption of said children, subject to the legal rights of David Spickerman as the natural father*fn4 of the children, Brittany . and Timothy.." (Id.)

In a hearing on November 3, 2003, at which plaintiff was present with counsel, the Family Court determined that "each child [Brittany, Dalyn, Timothy and James] would be at risk of abuse or neglect if returned to Rose or David Spickerman." (Palmer Affirmation, Ex. CC, at 6.) The Family Court further found that neither parent had fulfilled the service plans devised and given to each of them and that the new permanency goal was adoption rather than return to the parents. (Id. at 3.)

On December 3, 2003, M. Josh McCrossen, Commissioner of the Wayne County Department of Social Services, filed a Notice, Permanent Neglect seeking an order freeing the children for adoption. (Palmer Affirmation, Ex. DD.) Hearings were held before Family Court Judge Sirkin on July 8, 2004 and August 6, 2004. (Palmer Affirmation, Ex. E.) Judge Sirkin determined that the children were permanently neglected. Judge Sirkin's Decision reflects the significant attempts defendants made to work with plaintiff to devise a plan for the care of the children while he was incarcerated, but that, ultimately, plaintiff had failed to present a viable plan, and had failed ...

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